Town of Plaistow Archive - ZBA Minutes 12-03-09

ZBA Minutes 12-03-09

ZONING BOARD OF ADJUSTMENT

December 03, 2009

The meeting was called to order at 7:02 p.m.

Roll Call: Present were Larry Ordway, Chairman; Robert Loeffler, Roderic Cole (arrived 7:05 p.m.); Daniel Lloyd, Alternate; and Paul Boniface, Alternate. Julie Matthews, Vice-Chairman; Peter Bealo were excused.

D. Lloyd and P. Boniface were appointed as voting members for this meeting.

Minutes of October 29, 2009

R. Loeffler moved, second by D. Lloyd, to approve the minutes of the October 29, 2009, meeting. There was no discussion and the vote was 3-0-1 (Boniface abstaining).

L. Ordway noted that there were only four members present at the meeting and explained the significance for voting purposes.

#09-25: A request from Francis J. Berube, Jr., for a variance from Article IV, §220-21(B&C) to allow the retention of existing bituminous concrete pavement within the wetlands buffer. The property is located at 116 Main Street, Tax Map 40, Lot 32 in the CII District. The property owners of record are Francis J., Jr. and Charlene J. Berube.

Dan Johnson, Plaistow Consultants, and Charlene and Francis Berube, property owners were present for the application.

D. Johnson explained that it had been discovered that there was an issue with the location of pavement in the wetlands buffer on the property.

R. Cole arrived at 7:05 p.m. There is now a five-member board.

D. Johnson continued that the Planning Board sent them to the Zoning Board to seek relief. He noted the following information about the property at 116 Main Street:

The pavement is currently existing
The business is Brookside Chapel Funeral Home
There were parking issues which prompted the applicant to install additional paving
The applicant was unaware that they should have gone to the Planning Board to amend their site plan prior to installing the additional pavement
The wetland delineations were different in 1993, when the pavement was installed, than they are currently

There was a discussion of the plan, depicting the location of the pavement and the applicable wetlands setbacks, submitted with the application.

L. Ordway questioned why the existing driveway was included on the plan.

D. Johnson noted that it too was in the now setback and the Planning Board suggested it would be good to get that cleared up as well.

L. Ordway asked if it was a question of the traffic flow and why the pavement could not be relocated.

D. Johnson said that there was no way to determine how many people may attend any given wake or funeral service and frequently the parking spills over into the street. He added that Mr. Berube added this paved area in an effort to alleviate that overflow and lessen the impact to abutters.

D. Johnson added that trying to locate parking in other areas was not feasible due to the location/design of the raised septic system and the location of the well.

L. Ordway asked if there had been any runoff issues.

D. Johnson informed that he had met with the Conservation Commission (ConCom) and they had submitted a letter.

The letter from the ConCom was read into the record. The letter supported the granting of the variance if two conditions are agreed to by the applicant:

All pavement in the southwest corner within the 25 foot No-cut, No-disturb buffer must be removed.
A treatment swale along the southern edge of the parking lot must be added to provide sediment control and removal for sand and salt from the parking lot.

D. Johnson indicated that his client agreed to meet the two (2) conditions of the ConCom.

D. Johnson addressed the criteria for the granting of a variance, noting the following:

There would be no decrease in surrounding property values as the area is hidden behind trees and brush and Seaver Brook and the area is always clean and well maintained
There is a benefit to the public interests to have paved parking especially when most people attending services here would be dressed up and graveled parking often becomes rutted and dusty. It was also noted that Pollard School sometimes uses their property for overflow parking
The location of Seaver Brook makes locating of pavement outside the wetlands buffer difficult
The lot coverage of the property is 26.2%
The well and septic buffers also provide issues for the placement of pavement on the site
Congestion on the site is reduced as is parking and congestion on Main Street
It is not contrary to the spirit and intent of the ordinance as off-street parking is permitted and required under Planning Board site plan regulations.

D. Johnson noted that they were seeking a minimal intrusion into the wetlands.

The Board asked for clarification of the current wetlands ordinance and the definition of the buffer setback.

L. Ordway asked if there were any additional questions from the Board, there were none. He asked if there were any abutters speaking in favor of or in opposition to the application.

Rob Pitts, 114 Main Street, questioned the amount of the setback intrusion adding the he was regularly bothered by the vehicle headlights and the people talking in the parking lot.

D. Johnson noted that the Berube’s have been good residents of the town.

L. Ordway asked if consideration had been given to providing additional screening.

D. Johnson replied that the area was already well covered with evergreen trees, but there may still be some light and sound getting through. He added that, due to the nature of the business conducted at this location, the tone that people used when speaking was more subdued.

D. Lloyd asked when the usual viewing hours were.

F. Berube replied that the latest was concluded by 8:00 p.m.

D. Johnson added that everyone was usually gone by 8:30 p.m. at the latest.

R. Loeffler questioned if there had been any elevating of the water level.

D. Johnson replied that after the rains the sand collects and that is why they need a treatment swale.

L. Ordway asked if there was anyone else who wanted to be heard. There was no one and the matter was closed.

#09-26: A request from RJ Pica Engineering, Co., Inc. for a variance from Article V, Table 220-32B.C(b) to allow the subdivision of a lot that would create a lot with less than the minimum required 150 feet of frontage. The property is located at 166 Plaistow Road, Tax Map 30, Lot 55, in the CI District. The property owner of record is PPW Realty Trust.

#09-27: A request from RJ Pica Engineering, Co., Inc. for a variance from Article V, Table 220-32I to allow the subdivision of a lot that would create a less than the minimum required setback for an existing building. The property is located at 166 Plaistow Road, Tax Map 30, Lot 55, in the CI District. The property owner of record is PPW Realty Trust

#09-28: A request from RJ Pica Engineering, Co., Inc. for a variance from Article V, Table 220-32B.c.a to allow the subdivision of a lot that would create a lot with less than the minimum required 80,000 sq. feet of area. The property is located at 166 Plaistow Road, Tax Map 30, Lot 55, in the CI District. The property owner of record is PPW Realty Trust

Ron Pica, RJ Pica Engineering, Inc; Peter DeJager and John St. Pierre, of PPW Realty Trust, were present for the applications.

R. Pica noted the following details about the parcels and the applications:

Originally there were three (3) parcels, 160 Plaistow Road (Plaistow Commons – plaza); 166 Plaistow Road (Plaistow Commons – Office Building) and a parcel that originally fronted on Walton Road
The Walton Road parcel was originally purchased to enhance the functioning of the other two (2) lots.
The residential use of the third (Walton Road) lot was discontinued and a plan was designed to use it for a septic system for the plaza and parking for the office building
In 1993-94 a plan was approved by the Planning Board for parking on the third lot
The plan also showed that it property line between 166 Plaistow Road (the office building) and the third lot was intended to be removed with the implementation of the approved site plan
The approved site plans were recorded at the Rockingham County Registry of Deeds (RCRD)
The office building has a septic system installed in 1986 that designed to handle 800 gpd (gallons per day), which at the time was considered to be overbuilt (480 gpd was stated to be the minimum for this purpose)
The septic system was never State of New Hampshire approved

R. Loeffler asked if the lack of State approval meant that the system was illegal.

R. Pica replied that the system was built larger than the 480 gpd described in the regulations of that time, which were not as restrictive as today’s regulations. He added that at that time all septic inspection was handled nearly exclusively by the Building Inspector.

L. Ordway asked if the system would be adequate by today’s standards.

R. Pica replied that a 480 gpd system would not be, but an 800 gpd system would be.

Parking to the rear of the office building was never installed, all the parking is in the front of the building
Residential use of the Walton Road property was discontinued

L. Ordway asked if the house was gone.

R. Pica replied that when he was out surveying the topography, he was approached by a resident who asked if the house could be taken down and his client did so nearly immediately.

There was a discussion of the access to the parcel (166 Plaistow Road) and the easements associated with it.

The water supply for the plaza is considered a public water supply and is therefore monitored by the State

There was additional discussion of the plan that was submitted with the application. The location of wells and which buildings were supported by which wells was explained.

R. Pica continued to explain the reason for the applications offering the following:

In 1993-1994 the applicant gained Planning Board approval for a site plan which would increase the size of the leach field (to 1435 gpd), add parking on the third lot and consolidate the office building and residential parcels
The approved site plan was never implemented due to a downturn in the economy
The State approval of the septic plan expired
The Planning Board approved plan for the parking expired, but the lot line was still removed
They have made application for a new septic design approval from the State but in order to get it the lot line needs to be re-established in order to meet the State’s requirements for nitrate setbacks
There has been a verbal approval for the septic design if the lot line is re-established

L. Ordway asked why the current fields couldn’t be used to service the office building.

R. Pica replied that it would restrict the types of uses that could be in the office building, noting that his client was exploring the possibilities of the office building be used for a medical facility. He added that the Early Bird Café was not using their septic fields to their full capacity but cannot have any additional loading added to them.

L. Ordway questioned if the existing leach field had failed and whether or not it would suppose a medical facility.

R. Pica offered that the State requirements were 250 gpd/doctor and they were anticipating 4-5 doctors and their support staff. He noted that since the building is 83% unoccupied the septic system hasn’t been tested.

L. Ordway asked if there was any way to go forward with this project without re-establishing the property line.

It was noted that the Board was not being asked to re-establish the property line but to grant relief such that the property could be subdivided by a Planning Board application.

R. Pica answered that they would be unable to get the septic approval to allow a medical facility and the building would most likely remain largely empty. He reiterated that everything about the 1993-1994 site plan approval was reverse with the exception of the dissolution of the property line. R. Pica noted that the subdivision would only be to be able to get the septic approval. He stated that no additional buildings would be added and nothing else about the property would change. Access would still be from Route 125, over the current easement. R. Pica noted that was one of the variance requests, because the subdivision of the lot created a lot with less than the minimum frontage, but there was no way to increase the frontage on Route 125 and they did not want to access the site from Walton Road. He added that the current frontage was adequate for the site to function properly. R. Pica reiterated the only reason to subdivide the lot was to get State approval of the septic design. He said if they were unable to subdivide the lot they would lose their approval for a 1440 gpd system, which is what they needed for a medical facility.

There was a discussion comparing the State’s septic requirements for an office building to a medical center. It was noted that hours of operation did not come into consideration and that the calculations are standardized based upon the use of the property.

R. Pica noted that a 1440 gpd septic system would max-out the site under the State’s current regulation and bring everything to capacity, which was the intention of the 1993 site plan. He added that he was hoping that the Planning Board would just revoked everything on the approved site plan that had never been implement, but they were sent to this board instead.

R. Pica explained that the Planning Board had sought legal counsel for guidance in deciding whether to revoke the plan or ask the applicant to seek ZBA relief. He said that it was determined that since the property had been being taxed under a single tax bill for a long period of time that it was considered to be one lot and would require a subdivision.

L. Ordway added that the formerly residential property was most likely taxed at a higher commercial rate when it was combined.

R.. Pica noted that the third variance request was for the existing building, which once the property line was reestablished would be in the minimum setback. He noted that the building was in compliance with the setback requirements that were in place at the time it was constructed. R. Pica reiterated there would be no additional buildings added to the site.

R. Pica, noting that the answers would be essentially the same for all three (3) variance requests, addressed the criteria for the granting of a variance, offering the following:

The office building has access on Route 125 and the now single-lot parcel was once two parcels and they would like to re-establish that lot line in the same location
The lot has frontage on Walton Road which is not beneficial to the functioning of the project
The back lot (Walton Road) was purchased for the enhancement of the other parcels
The land use remains the same and the use will not change with the lot line
The building will provide more and better services to Plaistow as a medical facility
This is a unique setting in that the lot only has 4.72 feet of frontage on Route 125
The intent of this application is to bring this property to the status that was intended under the 1993-1994 Planning Board application

R. Loeffler asked if the Town could have consolidated these lots where one lot did not function independently.

R. Pica replied that because all the lots, at the time the third one was purchased, were developed, they would not have been administratively combined under the zoning ordinance.

The leaching capacity cannot be increased because of the States nitrate setback requirements
The State has granted approval of a new septic design if the lot line is re-established
If the lot line is not replaced the septic cannot be increase and cannot support the building now
Removal of the lot line restricts the applicant’s use of the property
The applicant did not benefit from the prior approvals as they were never implemented and therefore they should be allowed to replace the lot line
The office building setbacks will not change, it is the minimum requirements for setbacks that have changed over time
The intent of the land use remains the same
The total acreage of the parcel will not change
The only thing that changes is the applicant’s ability to put in a septic system that will be adequate no matter what the use of the building is

P. DeJager offered that he has had the property for sixteen (16) years and has done his best to make the building productive. He added that the office building and the plaza came as a package deal. Mr. DeJager offered that it has been his long range plan to bring a medical facility to the building. He added that a medical facility would be a valuable town service and provide good local jobs. Mr. DeJager noted that the Town was promoting the ERZ (Economic Revitalization Zone) and this project could be part of that effort.

D. Johnson added that since the changes to the septic regulations on 2008 he has been told that the State is not granting waivers as easily as they used to. He added that this applicant has done a lot of work to get approval and would probably not be granted a waiver.

C. Berube offered that she is a nurse and having more access to health care is a benefit to the entire community.

L. Ordway asked if there were any additional questions from the Board, there was none. He asked if there was anyone speaking in favor of or in opposition to the application. There was no one and the matter was closed.

The chairman called for a break at 8:35 p.m. The meeting was called back to order at 8:40 p.m.

DELIBERATIONS

L. Ordway noted for the record that the Board was going to deliberate each case and come to a decision. He noted that under the RSAs there could be no additional input provided to the Board.

R. Cole moved, second by L. Ordway, to grant the wetlands variance for the property located at 116 Main Street with the two conditions set out in the ConCom letter.

L. Ordway summarized the applicant’s presentation, noting the following:

The pavement was existing, but the southern portion was within the wetlands setback
An abutter gave testimony that he was bothered by lights and noise
Last viewing ends at 8:00 p.m. and most everyone is gone from the site by 8:30 p.m.
There is some evergreens that offer some partial screening to the abutter
The applicant’s intention in installing the paving was to alleviate parking on Main Street

R. Loeffler suggested asked the Building Inspector to take a look at the screening and determine if mitigation was called for.

L. Ordway offered he didn’t think that they could make that a condition of approval as it was not what the Board was being asked to consider in this application.

R. Cole noted that he has been to the location and off-street parking was definitely a benefit.

The Board reviewed the criteria for the granting of a variance noting the following:

There will be no decrease in the surrounding property values as the pavement had been existing for some time and this was a minor intrusion
It is a benefit to the public interest to keep parking off Main Street
The hardship was that there was not enough parking in the original plan and to not allow the additional parking would be a hardship
There is a public safety gain by allowing more off-street parking
The spirit and intent of the ordinance is protection of the wetlands. This was an honest mistake and not intended to damage the wetlands and the measures suggested by ConCom will continue to protect the wetlands

There was no additional discussion on the motion. The vote was 5-0-0 U/A.

R. Cole moved, second by R. Loeffler, to approve all three (3) variance requests for the property located at 166 Plaistow Road as noted.

L. Ordway summarized the applicant’s presentation, noting the following:

The issue is that the applicant would like to return the property to the status is was in 1993, prior to Planning Board approval of a site plan that consolidated two lots
The lot at 166 Plaistow Road has 4.72 feet for frontage, less than the 150 minimum
The building will not be set 35 feet from the property line if the lot is subdivided
The acreage of each lot will not be 80,000 square feet, which is the minimum allowed under zoning

R. Cole offered that these are existing conditions and they are not trying to “porkchop” the lot.

L. Ordway noted that the new septic design is a benefit as it will be able to handle any use.

R. Cole added that more business in town would mean more jobs.

R. Loeffler reminded that they are not adding any additional buildings.

There was no further discussion on the motion. The vote was 5-0-0 U/A granting all three (3) variances.

There was no further business before the Board and the meeting was adjourned at 8:58 p.m.

Respectfully Submitted,

Dee Voss

Administrative Assistant